EEL News Service Issue 2012/2 of 29 February 2012

This reference for a preliminary ruling concerns the question whether an administrative act which has been ratified by the legislature can be excluded from obligations under the Environmental Impact Assessment (EIA) Directive 85/337/EEC and the Aarhus Convention. The reference has been made by the Cour constitutionelle of Belgium in proceeding brought by persons residing near airports and a railway against the Region of Wallonia for ratifying building consents at those installations. The residents argue that the obligations under the EIA Directive as well as the Aarhus Convention have been “bypassed” as the Conseil d’État ‘ratified’ an administrative act, making those projects fall outside the scope of the two instruments.

The Court made the initial observations concerning the conditions for the exclusion of a project from the scope of the EIA Directive. As of Art. 1 (5), a legislative act adopting a project must be specific and display the same characteristics as a consent of that kind. The project must also be adopted in detail and include all the elements of the project relevant to the environmental impact assessment. Moreover, the legislative acts are only excluded from the scope of that directive when the legislative body has substantively fulfilled the objectives of the Directive, particularly that of supplying information. Accordingly, the Court is of the opinion that only projects the details of which have been adopted by a specific legislative act, in such a fashion as to achieve the objectives of the directive and Convention by the legislative process, are excluded from the scope of those instruments. Thus, the national court has to verify that those conditions have been satisfied, taking into account both the content as well as the procedure of the act adopted.

In its ruling the Court followed its previous rationale from the Boxus and Others Case C-128/09, that a legislative act which ‘only’ ‘ratifies’ a pre-existing administrative act without a substantive legislative process, cannot be regarded as an act sufficient to exclude a project from the scope of the EIA Directive. This strengthens the safeguards put in place by the EIA Directive and the Aarhus Convention that which projects likely to have significant effects on the environment are made subject to an environmental impact assessment before consent is given. Interestingly, the Court concluded that the Implementation Guide to the Aarhus Convention is to be treated as an ‘explanatory document … capable of being taken into consideration … for the purpose of interpreting the Convention’.

This reference for preliminary ruling answers questions of the German Federal Administrative Court regarding obligations under Directive 2003/4/EC on public access to environmental information. Under the directive, public authorities are required to make environmental information available upon request. Flachglas Torgau, a glass manufacturer in Germany covered by the EU emissions trading system (EU ETS), requested the Federal Ministry for the Environment to provide information concerning the law on the allocation of EU allowances (and on the legislative process leading to the adoption of this law). The ministry refused to provide this information and the referring German court is asking whether such a refusal can be accordance with directive 2003/4/EC.

The Court noted that Member States are allowed to exclude public bodies from the requirement to disclose information when they are acting in a legislative capacity. This is to ensure that process for the adoption of legislation runs smoothly. However, it stipulated that the ministry which participated in that process can no longer rely on that exception once the legislative process has ended, i.e. through the promulgation of the law. The Court reasoned that the smooth running of the legislative process can no longer be impeded at this stage by making environmental information available.

Moreover, the exception to disclosure if this would adversely affect the confidentiality of proceedings of authorities has also been qualified by the Court. The confidentiality upon which access is denied must be ‘provided for by the law’. Thus, the national law of the Member State must provide for the confidentiality to be a ground for refusal and it must also define the concept of the proceedings which are confidential. The Court additionally noted that reliance on the confidentiality of its proceedings by a public authority shall be accompanied by a balance of the interest involved in each particular case.

Added to Policy

Adverse effects of Biofuels reaching top level offices

The office of the Commission’s President has been included in the Indirect Land Use Change (ILUC) problem in order to ensure a forthcoming legislative proposal and impact assessment. At present, the Renewable Energy Directive (RED) demands that EU Member States ensure that 10% of their transport fuels consist of biofuels by 2020. ILUC forms a dangerous loophole in RED as it is not prevented. ILUC means that biofuels are produced on former food crops which in turn are moved to rainforests, etc. In this way, producing biofuels has a negative rather than a positive effect on the environment. José M. Barroso’s cabinet is now to arbitrate between the DG Climate, favoring ILUC factors to be introduced to penalize biofuels that are environmentally harmful, and DG Energy, resisting penalizing measures.

Connie Hedegaard, the EU’s Commissioner on Climate, has already called for caution regarding biofuels. Whilst she does say that the Commission will not backtrack to the 10% quote of biofuel for transport fuels, she does warrant for care in light of the potentially damaging effects.

Leaked EU data puts biofuels on the same CO2 impact level as tar sands. This would indeed by a striking observation as the EU is currently looking into regulating the utilization of tar sands due to their impact on climate change. A report by the European Environment Agency shows that biofuels for home heating are the leading contributor to sulphur dioxide, a main contributor to poor urban air quality in the EU.

Added to General

Commission warns Greece and Cyprus over landfill rules

The Commission decided on 26 January 2012 to send warnings to Greece and Cyprus concerning their failure to comply with Directive 99/31/EC on EU landfill rules. The Directive is a crucial instrument to prevent or reduce negative effects on the environment from landfilling of waste. It stipulates that landfills must meet certain conditions in order to continue its operations.

Greece is being sent two reasoned opinions, the first concerning a landfill located on the island of Zakynthos. An inspection confirmed that the site is operating in breach of the Directive. Additionally to the threat to public health and the environment, the landfill is causing damage to the loggerhead turtle through pollution and plastic bags. The second site operating without a permit is on the island of Corfu. The Greek authorities have failed to take appropriate action concerning the threat of the site since 2008.

In Cyprus, several landfills have been found to be operating in violation of the Directive. Six sites absorb the waste generated by two municipalities, however, without an adequate waste infrastructure.

On the 26 January 2012 the Commission reminded a number of Member States of their failure to transpose various EU environmental rules into their domestic law:

Belgium and Luxemburg have been urged to transpose the Water Quality Assurance Directive. Directive 2009/90/ECobliged Member States to measure the concentration of chemical pollutants in water in such a fashion as to ensure the detection of the presence of pollutants at concentrations surpassing the maximum authorized levels. Neither Belgium nor Luxemburg have notified the Commission about the transposition of the Directive, which should have been transposed by 1 August 2011.

Action is being taken against Germany for failing to transpose the Waste Framework Directive. Directive 2008/98/EC introduced waste management principles such as the “polluter pays principle”, laying down a binding hierarchy for managing waste. The Directive is set to limit the link between economic growth and waste generation. It should have been transposed by 12 December 2010, yet, no notification has been send by Germany to the Commission regarding the implementing measures.

Italy asked to bring national legislation into line with extractive mining waste Directive. Directive 2006/21/EC has the goal to prevent and reduce the effects of mining waste on human health and the environment. It establishes that extractive waste facility requires a waste management plan in order to have an operational permit. Also, emergency plans to prevent major accidents need to be drawn up by sites presenting a potential risk to public health. A prior letter of formal notice sent by the Commission in March 2011 concerning failure to transpose the Directive into domestic law has not been acted upon by Italy.

France has been asked to demonstrate implementation of the packaging Directive. Directive 94/62/EC covers all packaging waste and aims at reducing the volume of waste. It sets criteria for defining packaging and its waste which Member States have to transpose into their national legislation. The Commission is of the opinion that France has not yet implemented the criteria, potentially undermining the application of packaging waste rules. France has not informed the Commission of any progress on the implementation since 15 May 2011.

Following those shortcoming of the various Member States in implementing the EU environmental legislation into their national law, the Commission decided to send each Member State a reasoned opinion and asked for compliance within two months. If they fail to do so, the Commission may refer the cases to the EU Court of Justice and ask for immediate financial penalties without having to return to the court for a second ruling. The possibility to do so was introduced by the Treaty of Lisbon in Article 258 in conjunction to Art. 260 TFEU.

Monsanto, one of the largest producers of genetically modified (GM) crops in the world has announced on 25 January 2012 that it will shut down its operations on the French market. Monsanto had previously offered its MON810 maize, a GM maize, to French farmers. Yet, the French authorities put in place a temporary ban on the product in 2008 in the face of possibly risks to human or animal health or the environment. Despite of the fact that the ECJ and a French Court overturned the ban, the French authorities upheld its blockage of MON810. Monsanto said in a statement that it does not expect favorable conditions for the sale of their products in France within 2012 or beyond.

This is the second GM producer that has left the European GM market, with BASF announcing its leave on 16 January 2012, as we reported. These development highlight the resistance to GM crops and foodstuffs in the EU.

Added to Climate Change

Opposition to EU ETS is staggering up

Since 1 January 2012, EU and foreign airlines flying to and from the EU are obliged to participate in the EU Emission Trading Scheme (ETS). As reported, the ECJ decided in December 2011 that the EU legislation in which this obligation is laid down does not violate international law.

A second US bill opposing the EU Emission Trading Scheme (ETS) has been agreed upon by the US House and Senate on 1 February 2012. The new bill formally expresses its opposition to the ETS and represents the position of the Obama administration. It questions the legality of the European measure and calls for a global solution. The bill take a more diplomatic stance than another US billintroduced earlier, which prohibits operators of civil aircrafts of the United States from participating in the EU ETS, currently on debate in the US Senate.

Also, the Chinese government prohibited its airlines from participating in the ETS altogether on 6 February 2012. The Civil Aviation Administration of China prescribes that Chinese airlines cannot join the ETS or use it as a justification for raising ticket prices without governmental approval. It is the view of the Chinese government that the EU ETS in in breach of both, the UN Framework Convention on Climate Change (UNFCC) as well as the principles of the International Civil Aviation Organization (ICAO). A spokesman of the Chinese Foreign Ministry has reported states that “China will consider taking necessary steps in accordance with the way thing develop to protect the rights of our nationals and our companies,”.

On 14 February 2012 the environment ministers of Brazil, India, China and South Africa issued a joint statementcondemning the EU ETS as unilateral action which “which violates international law including the principles and provisions of UNFCC”.

The EU ETS opposition has apparently culminated on 22 February 2012 as a group of over 20 countries, including the US, China, India and Russia, agreed upon a set of possible countermeasures. The countermeasures of this “coalition of the unwilling” include barring airlines from participating in the scheme, as already realized by China, launching a formal complaint with the ICAO, imposing taxes on EU airlines landing or departing from the opponents countries as a direct countermeasure and also assessing the scheme’s legality under WTO law. Particularly action before a WTO panel, its judiciary organ, might appear as a feasibly option. The ECJ was not asked to examine the scheme’s legality under WTO laws.

Meanwhile, Connie Hedegaard, Commissioner for Climate, has stated that “Nobody has an interest in a trade war”.

Added to Reviews

Climate Change Liability: Transnational Law and Practice

The book “Climate Change Liability: Transnational Law and Practice” has been published. This book explores the concept of liability for climate change – holding those who have contributed most to the greenhouse gas concentration responsible to make significant reductions in order to avoid the damaging effects of climate change. It sets out the legal principles which carry the notion of climate change liability and takes a rigorous and extensive look at national policies on climate change and correlating legislation in seventeen nations as well as the European Union. National law is being examined for its potential to advance rights-based legal arguments in private and public law in order to achieve climate justice. Besides a comprehensive scientific overview for the basis for climate change liability, the book offers a discussion of the relevant policy considerations besides of the legal issues. The book has been edited by Richard Lord QC, a London-based commercial litigator with over 25 years’ experience, Silke Goldberg, a Paris-based senior associate in Herbert Smith’s global energy practice and a rsearch in energy law at the University of Groningen The Netherlands, Lavanya Rajamani, a Professor at the Centre for Policy Research, New Delhi and Jutta Brunnée, a professor of Law and Metcalf Chair in Environmental Law at the University of Toronto. Among the contributors to the book is our EEL editor Daria Ratsiborinskaya with a chapter on the Russian legal system.

What State Aid Measures Should be Permitted Under the EU’s Emissions Trading System?

The Centre, a Brussels “think-do tank”, hosts the panel discussion “What State Aid Measures Should be Permitted Under the EU’s Emissions Trading System (ETS)?”. The panel will discuss whether state aid measures are effectively needed for the effective implementation of the third phase of the EU Emission Trading System. It will also be discussed what the best tools and main obstacles to this process are. The panel includes Nicola Pesaresi, Head of Unit for State aids Policy and Scrutiny and the DG Competition, Professor Nicolas de Sadeleer, Professor of EU law (Saint Louis University and Jean Monnet Chair), Marta Ballesteros, Senior lawyer, Clientearth Brussels Office and Marcin Stoczkiewicz, Senior lawyer at the Warsaw Office of Clientearth.Registration can be completed by sending an E-Mail with ‘State Aid’ in the subject field and stating clearly your name and organization to:meet@thecentre.eu

Location: Edelman | The Centre, Avenue Marnix 22, B-1000 Brussels

Date: 5 March 2012, 13.00 – 14.30

Presentation of The Energy Law Yearbook 2011

The Flemish Organization for Energy law and the Institute for Environmental and Energy law host the presentation of the Energy law Yearbook 2011. The presentation will include, amongst other things, a discussion of recent development in the European energy law, given by Ms. Inge Bernaerts from the DG Energy. Information can be found on the website of the host (in Dutch)